Withdrawal From Representation Requiring Court Approval; Withdrawal Conditioned on Disclosure of Client’s Whereabouts
Where the rules of a tribunal require a lawyer to seek leave of the tribunal
before withdrawing from a representation, the Rules of Professional Conduct
also require the lawyer to seek such approval. It is insufficient for
a withdrawing lawyer merely to inform the client of upcoming proceedings
in his or her case and to advise the client to secure new counsel.
Where
the Immigration Court will grant unconditional leave to withdraw only
if the lawyer discloses confidential client information, the lawyer may
not disclose the information without client consent. Rather, the lawyer
must remain in the case for acceptance of service on behalf of his client.
Applicable Rules
- Rule 1.6 (Confidentiality of Information)
- Rule 1.16 (Declining or Terminating Representation)
- Rule 3.4(c) (Obligation to Obey Tribunal Rules)
Inquiry
In 1986, the Immigration and Naturalization Service (INS) promulgated
rules that require a lawyer who is seeking to withdraw from a case to
obtain leave from the immigration judge. Before this rule change, the
inquirer reports, some lawyers did not file withdrawal notices because
it was thought that the notices might trigger the scheduling of a hearing,
a result usually not desired by clients in deportation proceedings.
The inquirer asks what ethical obligations are
imposed upon a lawyer who receives a hearing notice after he no longer
represents the client but before he has formally withdrawn as counsel.
The inquirer first asks whether the lawyer must seek leave from the Immigration
Court to withdraw or whether his obligation to the former client is discharged
upon informing the client of the hearing notice and date and recommending
to the client that he or she secure new counsel. The inquirer also asks
whether, in seeking to withdraw from a representation, a lawyer must comply
with a Board of Immigration Appeals ruling that requires a lawyer to provide
the client’s last known address to the immigration judge before leave
to withdraw will be unconditionally granted.
Matter of Rosales, Bd. of Immigration App. Interim
Decision No. 3064 (April 21, 1988), articulates the requirements for granting
a motion to withdraw from a representation before the Immigration Court.
Rosales holds that a lawyer, when seeking to withdraw, must provide the
court with the client’s “last known address, assuming it is more
current than any address previously provided to the immigration judge.”
The lawyer also must show that he attempted to advise his client, at the
client’s last known address, about the scheduled hearing. Provided both
of these requirements are met, the lawyer’s motion to withdraw will be
unconditionally granted. If, however, the lawyer fails to provide the
requisite information, the lawyer’s withdrawal will be granted on the
condition that the lawyer remain responsible for acceptance of service.
Discussion
The inquirer is unclear about his intention to file
the notice of withdrawal required by the INS rules. For purposes of this
opinion, we assume that the inquirer intends not to file a notice of withdrawal
out of concern that the notice would trigger a hearing. Thus, the question
is whether the Rules of Professional Conduct are violated if a lawyer
fails to file a notice of withdrawal as required by agency or court rules.
Rule 1.16, Declining or Terminating Representation,
provides the bases upon which a lawyer is required or permitted to withdraw
from a representation and obligates a lawyer, whenever a representation
is terminated, to take various steps “to protect [the] client’s
interests.1
The rule also obligates a lawyer to continue
to represent a client if so ordered by the tribunal. Thus, subsection
(c) states:
When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.Rule 1.16 is the counterpart provision to former District of Columbia Code of Professional Responsibility Disciplinary Rule (DR) 2-110, Withdrawal From Employment. In particular, DR 2-110(A) provided:
If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a proceeding before that tribunal without its permission.While the language of Rule 1.16(c) is less direct than that of former DR 2-110(A), it is clear that Rule 1.16(c) also was intended to require that leave to withdraw be obtained from a tribunal when so required by the tribunal’s rules:
[Rule 1.16(c)] allows for court rules which, in many instances, condition withdrawal by any counsel of record on court approval. DR 2-110 (A)(1) of the predecessor Model Code expressly correlated the condition of court approval with the existence of rules of a tribunal. [Citations omitted.]
Annotation, ABA Model Rules of Professional Conduct, 276 (2d ed. 1992).
We therefore conclude that Rule 1.16(c) requires
a lawyer to seek leave to withdraw if the rules of a tribunal require
such approval.2 It is insufficient merely
to inform a former client of a pending hearing date and advise him
or her to secure new counsel. Whenever a representation has terminated
and approval to withdraw is required, the lawyer’s obligations are not
discharged until he or she has secured such leave of the tribunal. See
In re McKennett, 349 N.W.2d 29 (N.D. 1984) (notification of client and
opposing counsel regarding withdrawal insufficient; local rules required
lawyer to notify court as well); compare with In re Coe, 731 P.2d 1028
(Or. 1987) (lawyer’s failure to seek permission was not an ethical violation
since probate court rules did not require permission to withdraw).
The risk that a client may be harmed by his or
her lawyer’s compliance with the rules of a tribunal is not a consideration.
See Rule 3.4(c) (lawyer cannot “knowingly disobey an obligation under
the rules of a tribunal except for an assertion that no valid obligation
exists”). In any event, where a lawyer does not know the location
of his or her client, the client should not be harmed if, when the lawyer
seeks leave to withdraw, the immigration judge asks the withdrawing lawyer
for the client’s location. The lawyer can truthfully answer “no.”
The more difficult issue arises when the lawyer
knows the client’s whereabouts. Information regarding the client’s location
may, in some cases, be protected as a confidence and would, in many
circumstances, be protected as a secret under Rule 1.6(b).3
While “confidence” is defined by the more narrow attorney-client
privilege, “secret” is given a broader meaning to include
all “other information gained in the professional relationship . . . the
disclosure of which would be embarrassing, or would be likely to be
detrimental, to the client.” (emphasis added). In the context of
a deportation proceeding, where a deportation order cannot be effected
without the authorities’ knowing the client’s whereabouts, it would
be to the client’s obvious detriment for his or her lawyer to disclose
the client’s last known address or where the client could be found.
In this regard, the ruling in Rosales, supra, does not, in and of itself,
force a lawyer to reveal his client’s last known address. Rather, it
gives the lawyer who seeks to withdraw from a representation a choice:
(1) to withdraw unconditionally, the lawyer must disclose the client’s
last known address; or (2) if the lawyer does not provide this information,
the withdrawal will be granted only conditionally, i.e., the lawyer
must continue to accept service on his client’s behalf.
Given this choice, we believe that the lawyer
would violate Rule 1.6(a)(1) if he revealed his client’s whereabouts without
the client’s consent. A lawyer in this position is limited to seeking
conditional withdrawal, which does not require disclosure of a client
confidence or secret.
Inquiry No. 87-9-49
Adopted: June 19, 1996
- These steps include giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fee that has not been earned. Rule 1.16(d).
- Rule 1.16(c) is not limited to court cases. The rule also applies to administration agency proceedings. See G.C. Hazard, Jr. & W.W. Hodes, The Law of Lawyering § 1.16:401, at 484 (1996 Supp.), quoted in Annotation, supra at 275.
- Rule 1.6 states in relevant part:
(a) except when permitted under paragraph (c) or (d), a lawyer shall not knowingly:
(1) reveal a confidence or secret of the lawyer’s client; . . . .
(b) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client. . . .
(d) A lawyer may use or reveal client confidences or secrets:
(2)(A)(1) When permitted by these rules or required by law or court order; . . . .
